Legal Question in Wills and Trusts in Canada

Re: Its in the will but he didn't own it

It's not really a question of contesting the Will. The issue is proving ownership. The Will can only dispose of property that your father owned. If your father gave away an item before his death then the part of the Will that purports to give that same item is void.

If your daughter has possession of the item and you intend to not give it up, in fact it is the executor of the estate who would have to bring a Court action to try and recover the item. The executor would have to prove to the Court, on a balance of probabilities, that, at the time of his death, your father still owned the item. Among other things the executor would likely produce the Will as evidence that your father believed he owned the item.

Was the Will made before or after the item was given to your daughter? If the Will was made after the item was given to your daughter, you may have tougher time with your case because the timing of the making of the Will suggests that your father had not then given the item to your daughter. Iis not conclusive evidence as you could argue your father had forgotten that he had given the item to your daughter. If the Will was made before the item was given to your daughter, then the Will probably does not provide very strong evidence of anything. You would simply argue that your father changed his mind sometime after he made his Will and did not bother to, or forgot to, change his Will.

You should consider preparing such evidence as you can that would substantiate your claim that your father gave the item to your daughter.